Unconscious bias has become firmly embedded in the thinking of HR departments in many organisations, even though it only found its place in modern psychology just over 20 years ago. In 1998, the University of Washington and Yale published the world’s first research on the subject which revealed that it is remarkably prevalent: 90-95 per cent of people show traits of unconscious bias

Despite a raft of equality legislation, we still live in a world of prejudice in relation to ethnicity, gender, age and sexual orientation. More recently, research by neuroscientists showed that brain regions involved in race and gender start to form in early childhood. In the adult world, there is overwhelming evidence that ethnic minorities, in particular, are affected by decisions affecting recruitment, access to healthcare and the criminal justice system. However, dispute exists as to what extent such bias is genuinely unconscious.

Unlike direct discrimination, where an individual is targeted specifically due to their protected characteristic, unconscious bias can occur when people within the process have views based on stereotypes or prejudice; for example, the view that a black man must be the aggressor, as arose in the recent employment tribunal case of Hastings v King’s College Hospital NHS Foundation Trust (KCHFT)

Here, Richard Hastings was awarded £1 million in compensation following an employment tribunal procedure which found KCHFT guilty of racial discrimination and unfair dismissal tainted by ‘unconscious bias’.

Hastings had worked for KCHFT since 1996, until his dismissal in October 2015 on the grounds of gross misconduct following an incident on the premises with a contractor and a van driver.

Despite an exemplary record, he was accused of assault after attempting to note down the van’s registration and defend himself following being racially abused and assaulted.

The tribunal heard how Hastings called the security office for help. Although the call was confirmed as received, it was never logged. Nobody came to his aid. Instead, KCHFT’s disciplinary report consistently painted him as ‘the aggressor’ and the contractors as ‘victims’ despite CCTV evidence to the contrary.

An investigatory meeting described as an ‘interrogation’ and a failure to investigate Hastings’ grievance over the racial abuse contributed to the tribunal’s findings that the process was biased and discriminatory. Opportunities to collate more evidence supporting his claims of innocence were repeatedly missed. The entire investigation process was fundamentally flawed – skewed against him due to assumptions made at the outset, related to his race.

This report went unchallenged by those involved later on, who were heavily influenced by the investigation, even meeting the investigator outside the formal process. Highlighting a ‘catalogue of failings’ the tribunal crucially found these showed a difference in treatment between the white contractors and Hastings, a British man of Caribbean descent, whose evidence had been treated with unwarranted distrust and disbelief.

Conversely, the tribunal found that Hastings was an honest witness, identifying numerous inconsistencies and flaws in the opposing evidence. This serves to highlight the very different outcome of an impartial review of the evidence untainted by bias.

Tips for employers

This is a stark reminder to employers of the need for every stage of the process to be thorough and truly independent. Decision-makers must be genuinely empowered to reach their own decisions, aware of their level of responsibility and the need to be personally confident in the validity and completeness of evidence obtained and the investigation process.

The opportunity to challenge the report, or halt and call for more evidence, should be explicit. HR advisers should be vigilant for signs of unconscious bias and alert to the risks associated with processes being undertaken by staff who may do so infrequently and outside their ‘day job’.

Do

Train HR staff, investigators and decision-makers on the risk of unconscious bias.

Be explicit about duties, obligations and powers – decision-makers must be confident in the veracity and completeness of the evidence.

Give explicit permission in policies to require further evidence or re-investigation if necessary.

This article was written by Louise Brown

Louise is an employment solicitor with over 22 years experience including 15 years running her own niche employment law firm as a Sole Practitioner. She had total responsibility for business development, compliance with the SRA requirements, running all aspects of the firm whilst at the same time carrying a significant case load of clients.
She has always acted for both employers and employees. Louise has been listed in Chambers as a “notable practitioner”.